Using mediation to reach a quicker, cheaper, and often less stressful resolution to your personal injury dispute.

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In recent years, there has been slow but steady movement away from
the expensive, stressful, and time-consuming adversarial legal system as a way
of settling personal injury disputes. Instead, people have been taking
advantage of different types of alternative dispute resolution -- particularly,
mediation. Even lawyers and insurance
adjusters companies now recognize the value of mediation and use it
frequently. And in recent years it has become quite common in personal injury
cases. If you have reached an impasse in negotiations with an insurance company
over settlement of your personal injury claim, mediation may offer a sensible way
out.

The Basics of Mediation and Personal Injury

In mediation, the parties involved in a dispute sit down with a
neutral third person (the mediator) who is trained to help people come to a
mutually satisfactory solution of their conflict. Until a dispute becomes an
actual lawsuit, mediation is entirely voluntary; it only happens if both sides
request it, and a settlement of the dispute through mediation is reached only
if both sides agree to it. The mediator doesn’t make decisions or even give
opinions. If the parties themselves do not agree to a solution, they go back to
where they left off before mediation. Also, nothing either party says during
mediation can be used by the other party in later stages of the dispute.

The cost of mediation is usually split equally between the two
sides. The process is informal; the purpose is to allow each side to have its
say without the burden of special legal procedures, and without fear that if
they say the wrong thing they can “lose” in the dispute.

Mediations in personal injury cases follow a basic structure,
though they vary slightly among individual mediators. Each party speaks to the
mediator in the presence of the other party; each gets to speak directly to the
other party with the mediator facilitating the interchange; and each gets to
speak alone to the mediator. The mediator then uses the information gathered
from the parties -- without revealing what either party says in confidence -- to
coax each side to change position sufficiently so both can reach an agreement.
There are no restrictions on what can be said or how facts and opinions are
presented, and the parties need no special training to make good use of the
mediation.

Mediation may be available from one of several sources:

Neighborhood or community dispute resolution centers can be found in
many cities and towns. They are staffed primarily by volunteers who have
some training in dispute resolution but who are not professional mediators and
do not have legal experience. These centers charge only very small fees, if
any. They mostly handle disputes between neighbors or cohabitants, landlords
and tenants, and small businesses or contractors and consumers. Most mediators
in these centers do not, however, have experience with personal injury claims
against insurance companies.

Professional mediation services are staffed by full-time mediators who
usually have both mediation experience and a legal background. They are
often lawyers or retired judges. They charge substantial fees (often several
hundred dollars for each party for a half-day session), and handle many
different types of mediation, most often involving business or property
disputes. Many of them have experience with personal injury claims.

Independent mediators are practicing or retired lawyers, sometimes
retired judges. Some have experience mediating personal injury cases; many
of those who do also handle personal injury cases as lawyers, representing
either injured parties or insurance companies. Unfortunately, their experience
comes with a high price -- $100 to $300 per hour, and more.

Benefits of Mediation for Your Personal Injury Claim

If you have reached an impasse
with the insurance adjuster negotiating
your personal injury claim, consider mediation as a way to break the
stalemate. Mediation has several potential advantages. It allows you to sit in
the same room with the adjuster, which puts a human face (yours) on a claim
that is otherwise just a file on the adjuster’s desk. An adjuster may be more
likely to give you a reasonable settlement when sitting across a table from
you than if you remain merely a set of claim documents and a voice on the
phone. Mediation also gets the adjuster to put special effort into your claim,
which increases the likelihood that the adjuster will try hard to settle the
matter. You need no documents or arguments for mediation that you do not
already have from the claims process. And you get a third person -- the
mediator -- to encourage a break in the deadlock. And mediation can be much
faster, easier, and less expensive that the alternatives of hiring a lawyer or
going to small claims court.

Cons of Mediation an Injury Claim

There are also barriers to mediating a personal injury claim.
Mediation in relatively simple matters, like most personal injury claims,
usually lasts only a few hours. But those few hours can be very expensive if
you use a professional mediator. And the alternative of an inexpensive
community mediation service with experience in personal injury claims may be
impossible to find near you. Also, it can be hard to get an insurance adjuster
to agree to mediation because of the extra work it requires -- including a
personal appearance at the mediation session.

To Mediate or Not to Mediate…

Given these benefits and
barriers, you might want to consider trying to mediate your claim if:

you and the insurance adjuster are stale­mated
more than $2,000 apart in settlement negotiations

the major sticking point is the extent of your
injury and/or what degree each party was at fault for the accident, and

there don’t seem to be any negotiating moves
left for you to make, short of going to small claims court or hiring a lawyer.

Under these conditions, it may be
worth your while to investigate the mediation process, including whether an
appropriate, affordable local mediator is available.